Good Faith and Reasonable Expectations Jay M. Feinman* I. INTRODUCTION The recognition that there is an obligation of good faith in every contract has been regarded as one of the most important advances in contract law in the twentieth century. Nevertheless, a half-century after the doctrine’s incorporation into the Restatement (Second) of Contracts and the Uniform Commercial Code, great controversy and confusion remain about it. Recent articles describe the doctrine as “a revered relic,” “a (nearly) empty vessel,” and “an underenforced legal norm.”1 A scholarly dispute about the nature of the doctrine framed more than thirty years ago has hardly been advanced, much less resolved.2 More importantly, although nearly every court has announced its support of the doctrine, often using similar language and familiar sources, many judicial opinions are confusing or confused.3 The controversy and confusion stem from a fundamental misunderstanding about the nature of the good faith obligation. That misunderstanding is a belief that good faith is a special doctrine that does not easily fit within the structure of contract law. Indeed, the doctrine is seen as potentially dangerous, threatening to undermine more fundamental doctrines and the transactions that they are designed to uphold. As a result, good * Distinguished Professor of Law, Rutgers School of Law‒Camden. The author thanks David Campbell and especially Danielle Kie Hart for their comments. This article is for Arkansas lawyer David Solomon and his son, Ray. 1. See generally Harold Dubroff, The Implied Covenant of Good Faith in Contract Interpretation and Gap-Filling: Reviling a Revered Relic, 80 ST. JOHN’S L. REV. 559 (2006); Emily M.S. Houh, The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, 2005 UTAH L. REV. 1; Paul MacMahon, Good Faith and Fair Dealing as an Underenforced Legal Norm, 99 MINN. L. REV. (forthcoming 2015). 2. See Teri J. Dobbins, Losing Faith: Extracting the Implied Covenant of Good Faith from (Some) Contracts, 84 OR. L. REV. 227, 228 (2005) (“[T]here is little agreement about how the common law duty of ‘good faith’ should be defined or what the duty of good faith requires.”). 3. As Judge Posner stated, “[t]he . cases are cryptic as to its meaning though emphatic about its existence.” Mkt. St. Assocs. v. Frey, 941 F.2d 588, 593 (7th Cir. 1991). 526 ARKANSAS LAW REVIEW [Vol. 67:525 faith must be substantially restricted in its application. In particular, the doctrine needs to be closely tied to the terms of the contract, limited to cases in which a party has willfully violated its obligations under the contract, or both. All of this is wrong. There is nothing special about the doctrine of good faith. It is continuous with the rest of contract doctrine. Although it is distinct from other doctrines, it is only distinct in the same way that the rules about formation are distinct from the rules about consideration. Good faith is simply another embodiment of the basic principle of contract law—the protection of reasonable expectations. The application of that principle through the good faith obligation leads to the proper understanding of the content of the doctrine and a rejection of many of the ways that courts improperly cabin it. Part II of this article describes the controversy among scholars and the confusion in the courts about the obligation of good faith. Part III defines the protection of reasonable expectations as the fundamental principle of contract law and illustrates how that principle works in various doctrines in ways that resemble its role in good faith. Part IV applies the reasonable expectations principle to good faith and explains how it corrects the errors that courts make in applying the doctrine. II. CONFUSION ABOUT GOOD FAITH There is a longstanding and well-defined scholarly debate about good faith, conventionally characterized as a conflict between the “excluder” analysis pioneered by Robert Summers4 and the “foregone opportunities” approach described by Steven Burton.5 In a pair of landmark articles, Summers first described the doctrine of good faith in a way that is remarkable for an attempt to formulate a rule of law that may have contributed to the continual uneasiness about its status.6 Summers described good faith as “a phrase which has no general meaning or 4. See Robert S. Summers, “Good Faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 VA. L. REV. 195, 196 (1968). 5. See Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 HARV. L. REV. 369, 374 (1980). 6. See generally Robert S. Summers, The General Duty of Good Faith—Its Recognition and Conceptualization, 67 CORNELL L. REV. 810 (1982); Summers, supra note 4. 2014] GOOD FAITH 527 meanings of its own.”7 He then situated it among “a family of general legal doctrines, including implied promise, custom and usage, fraud, negligence and estoppel . [that] further the most fundamental policy objectives of any legal system— justice, and justice according to law.”8 The Restatement (Second) of Contracts adopted Summers’ analysis. The black letter of Section 205 imposes a “duty of good faith and fair dealing” without specifying the content of the duty.9 Most succinctly, the comments state: Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving “bad faith” because they violate community standards of decency, fairness or reasonableness.10 The Restatement definition incorporates several elements. First, good faith entails conforming to the “justified expectations” arising from the contract.11 Second, it also requires adherence to standards of conduct external to the contract.12 Third, the standards are defined in opposition to bad faith.13 Burton criticized the Summers-Restatement formulation for its vagueness and for its reference to standards external to the contract, and he developed an approach that analogized breach of the good faith obligation to simple breach of an express term.14 In both instances, Burton suggested, a party attempts to recapture opportunities foregone as a result of the making of the contract.15 When a party enters into a contract, it makes choices among opportunities and commits resources to the choices made; in doing so, it creates expectations in its contracting partner.16 Bad faith constitutes an attempt to recapture the 7. Summers, supra note 4, at 196. 8. Id. at 198. 9. RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981). 10. Id. § 205 cmt. a. 11. See id. 12. See id. 13. See id. 14. See Burton, supra note 5, at 373. 15. See id. at 378. 16. See id. at 377-78. 528 ARKANSAS LAW REVIEW [Vol. 67:525 opportunities foregone.17 Although the foregone opportunities are defined in terms of “the expectations of reasonable persons in the position of the dependent parties,” Burton’s approach focuses quite narrowly on economic elements of the contract, rather than on standards of reasonableness and decency.18 He notes, for example, that his approach: [E]nhance[s] economic efficiency by reducing the costs of contracting. The costs of exchange include the costs of gathering information with which to choose one’s contract partners, negotiating and drafting contracts, and risk taking with respect to the future. The good faith performance doctrine reduces all three kinds of costs by allowing parties to rely on the law in place of incurring some of these costs.19 Burton’s position is similar to the position adopted by Judges Posner and Easterbrook in a well-known series of Seventh Circuit cases. In their view, good faith is simply “a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute,” rather than an “injection of moral principles into contract . some newfangled bit of welfare-state paternalism” or “the sediment of an altruistic strain in contract law.”20 Instead, the essential purpose of the obligation of good faith is to achieve efficiencies that the parties as rational maximizers would have agreed to at the time of contracting, such as “minimiz[ing] the costs of performance” by “reducing defensive expenditures.”21 Both the Summers and Burton positions are frequently cited by the courts.22 The approach to good faith taken in this article is closer to the Summers-Restatement formulation than to Burton’s. The principal problem with the development and application of good faith in the courts, however, is not that they disagree on which position to adopt or that one potentially inadequate position has prevailed over the other. Instead, the 17. Id. at 373. 18. Id. at 391. 19. Burton, supra note 5, at 393 (footnotes omitted). 20. Mkt. St. Assocs. v. Frey, 941 F.2d 588, 595 (7th Cir. 1991) (citation omitted). 21. Id. 22. See, e.g., Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 40 (1st Cir. 2011) (adopting the Summers-Restatement formulation); Waste Connections of Kan., Inc. v. Ritchie Corp., 228 P.3d 429, 438-39 (Kan. Ct. App. 2010) (adopting Burton’s position). 2014] GOOD FAITH 529 problem is that although courts may cite one approach or the other, or sometimes both, they are routinely confused about the proper nature and scope of the doctrine. Both Summers and Burton advert to reasonable expectations, and courts often fail to consider the meaning of that principle. A returned focus on reasonable expectations as the basis of good faith is necessary to clarify confusion and correct errors courts commit in the doctrine’s statement and application. The confusion and error about good faith manifest around three issues: (1) What is the relation between the express terms of the contract and the obligation of good faith?; (2) Is subjective intention a necessary element of the violation of good faith?; and (3) What are the standards of behavior required to perform in good faith? These issues are fully developed in Part III, but as initial illustrations of the scope of the problem, consider two well-known cases in which courts produced lengthy discussions of good faith that are fundamentally unsound.